The state’s highest criminal court recently held a portion of the Texas “Improper Photography” statute unconstitutional. The Court struck down the section of that law that prohibited visually recording or taking a photograph of another without the subject’s consent, and with the intent to arouse or gratify the sexual desire of any person.
On September 17, 2014 the Texas Court of Criminal Appeals announced its decision in the case of Ex Parte Ronald Thompson. In Thompson, The Court held by an 8-1 majority that the taking of photographs and visual recordings of another without their consent is expressive conduct implicating the First Amendment guarantee of free speech, and therefore beyond the authority of the Government to regulate. This opinion specifically invalidates section 21.15(b)(1) of the Texas Penal Code. The First Amendment protections serve to invalidate the law even though, the Court said, the act of taking a photograph or visually recording another without consent was only criminalized under 21.15(b)(1) where the actor’s intent in making the recording or taking the photograph was done so with the intent to arouse or gratify the sexual desire of any person. As stated by the Court in this case:
banning otherwise protected expression on the basis that it produces
sexual arousal or gratification is the regulation of protected thought
and such a regulation is outside the government’s power.
The State sought to justify the law, broadly speaking, with three separate legal contentions. Two of the three are matters of what lawyers call “statutory construction.” The third argument however, went to the heart of the First Amendment, and was an effort to narrow free speech and to approve Government regulation of protected thought.
I was struck by the State’s argument that the act of taking photographs and/or the act of making a visual recording is not expressive conduct, and therefore not entitled to First Amendment protection. I was stunned to read that this argument was advanced in support of the constitutionality of the law. Artists and ordinary people have been expressing their point of view about the world through pictures and movies for a century or more. The First Amendment protects our right to express our thoughts, it protects the content of our speech even when, and perhaps most importantly at that time, the speech is offensive. The idea that prosecutors would contend that photographs and movies are not even entitled to First Amendment protections in nearly breathtaking.
I wonder if the lawyers making that argument on behalf of this law actually believe that. I wonder if they actually want to live in the world they appear to argue for in Court. Does the First Amendment protect some unpleasant and offensive expression of free speech? Yes, it sure does. That is the price we must pay to live in a free society. After all, what you view as offensive might be viewed by someone else as insightful, or beautiful. The same is also true about “speech” that you may view as having merit. That is why the First Amendment can never permit the content based regulation of speech.
When Court of Criminal Appeals handed down its opinion in this case, they took a stand for free speech, and for freedom. I personally am grateful.